Posted
by
timothyon Wednesday March 12, 2014 @08:09AM
from the until-they're-good-and-ripe dept.

An anonymous reader writes with this snippet from a report at PC World: "A court in California has prohibited the destruction of phone records collected by the government until further orders, raising a potential conflict with an order last week by the secret Foreign Intelligence Surveillance Court in Washington, D.C. Judge Jeffrey S. White of the U.S. District Court for the Northern District of California ordered Monday the retention of the call details in two lawsuits that have challenged the U.S. National Security Agency's program for the collection of telephone metadata. A number of lawsuits challenging the NSA program have been filed by privacy and other groups ... On Friday, Reggie B. Walton, presiding judge of the FISC, denied a motion from the Department of Justice that the current five-year limit for holding phone metadata should be extended indefinitely as it could be required as evidence in the civil lawsuits challenging the program."

One court says the program must retain all metadata for more than five years, and another court says that the program must not retain metadata for longer than five years. This means that the only lawful way to run the program lawfully is to ensure that no metadata covered by these judgements is gathered, effectively outlawing the program entirely.

Even though the judgements may apply only within certain jurisdictions, the entire program is affected as phone calls may be generating metadata on people within the jurisdiction, regardless of where the other end is.

One of the problems with the judicial branch is that the appeals process is generally only limited by the size of one's purse.

Bottomless budgets, like governments and large corporations have at their disposal, make for quite the unlevel playing field.

Actually, appeals are relatively cheap, because all you have to do is look at the record from the court below, research a bunch of cases, and write and talk about why your client should have won.

Trials, on the other hand, are expensive and a pain in the ass. You have to do discovery--collecting millions of documents, *analyzing* millions of documents, interviewing lots of people while having at least two lawyers and a court reporter in the room, doing a bunch of motions (each basically like an appeal--look

If the data is needed as evidence in the case, then the court should take custody of it and require all other copies to be destroyed. That way the information is available for the trial, but cannot be (ab)used for any other purpose by the NSA.

Another option would be for the parties to stipulate on what data has been stored, and then proceed in the trial on that assumption.

I'd prefer that the data be destroyed in accordance with the FISA court orders, and against the California court's orders. Then, I'd like to see the California court judge get pissed, and hold the NSA in contempt of court and order its officers arrested.

Courts always have the power to require data be preserved, ever since an Assyrian vendor smashed his clay tablets with a hammer to keep the captain of the guard from seizing them (;-))

They also have to specify exactly what's to be preserved, to avoid causing an unintentional denial-of-service attack on the recipient of the order, and they can require they be sealed, preserved in particular forms, or handed over to the court.

I don't think they had Assyrian judges court ordering the non-smashing of clay tablets. The establishment at that time was used to investigating itself. The guards could not read -- only the scribes could read. And in these cases, the accounting was to keep track of what they already owned -- nobody had accounts. If someone thought they were being cheated, they'd just go bash their head in. Investigations were probably not a part of the judicial process until well after the Magna Carta. Now Hammurabi's code

We hold all the "evidence"? 15,000 exabytes at the least? Who's going to review all of it?If it's wrong for 1 million records, is the court case going to be more judiciously correct with 20 trillion records?

And, without putting police on the scene where the data is stored -- how can you guarantee they don't just show you to a PC with a backup usb drive and say; "It's all there have at it." ???

If anyone were serious with oversight, they'd have a "cease and desist" on the way while black helicopters air-drop paratroopers and some forensic data specialists and then they block off all electronic access to the data storage facility while they trace any routes and private lines from the facility to where the real data might be if it isn't where we think it is. The other option is to sequester a sample of what is being stored -- take randomly with someone you send in to retrieve the data. You can use a good random sampling to represent what is going on, and then factor in the number of records -- this will change the case from a few billion to a few million to investigate.

Other than that; stop wasting everyone's time and taxpayer money with an order that cannot be complied with and serves no purpose. If they are ordered to just store the data for more than 5 years -- you just court ordered them to spend a few hundred billion dollars on something they probably intended to do. The reason they only stored 5 years is probably because they've only been storing it for 5 years so far or couldn't store any more data. The only reason the NSA didn't break any more laws - because they didn't have the technology and budget to do so, had they had a bigger budget and better tech, they'd be sucking up more data.

For instance, people with unrestrained eating shouldn't go into a buffet, and you shouldn't praise them for restraint after the kitchen runs out of food.

Pro tip; If you see a resume that says; "20 years of iPhone programming experience" -- that's also a sign that someone is fudging the numbers.

So a Federal FISA Judge (the leaded variety) says destroy it, a Federal Judge (the unleaded kind) in a Federal Court in California (not a California Government Court) says it's evidence so keep it. What we now have is a constitutional quandary as to who has jurisdiction. I guess the Appellate Court will have to take the matter up but they have no jurisdiction over the FISA court AFAIK. All I can say is that it's a fucking mess with dueling courts playing a game of Twister.

You're oversimplifying. The FISA courts have no constitutional authority and the judicial appointments to the FISA court have no oversight equating to a faux legal system with its own rules. Yeah the House and Senate built this retarded thing so what do you expect? You now have a proper court in which arguments both pro and con can be heard, making a decision that's in conflict with that. Who wins? Can FISA decisions be appealed? Not from what has been seen in the recent past and If the Attorney Gener

You're kneejerking. Just because the whole FISA system is bogus doesn't mean that you have to invent facts that don't exist. The FISA order explicitly stated that in the absence of any court ordered retention, the records could not be retained longer than authorized. That is the FISA court ordered the NSA to follow the (bogus) law and not try to bend the rules any further than already (bogusly) allowed.

The fact that there is now a court order requiring some preservation of records is explicitly not in c

Nope, I read it but I don't believe that's what was stated. Walton's ruling indicated that metadata over five years should be destroyed. What myself and the rest of the country is waiting for is an actual SCOTUS ruling on how this Mickey Mouse FISA court system is operating outside of normal judicial review since the Chief Justice appears to be the only oversight.

In his order, Walton denied the government motion to allow the holding of data beyond five years but "without prejudice," which gives the government the option to file another motion on the issue in the light of additional facts or legal analysis.

Now if the Government was quick about it, data could have already been destroyed prior to the effect of the TRO.

Indeed the FISC ruling said, repeatedly, that NSA could not keep the records for a civil suit _because_ the district court hadn't ordered them to. Now that the district court _has_ ordered them to to retain it, they must. FISC explicitly said they have a duty to preserve it if and when (but not before) a plaintiff or court asks them to.

So the "conflicting" orders are a non-story. The actual story is that the district court ordered them to retain it. FISC already acknowledged that district can and might